Last Thursday, the United States Court of Appeals for the Second Circuit denied Judge Shira Scheindlin’s motion to vacate the order of the panel, which removed Judge Scheindlin from presiding on any further proceedings in Floyd v. City of New York, 12 Civ. 2274 (SAS).
This Court of Appeals decision is the latest twist in the legal drama that ensued following the Floyd decision.
In its decision on Thursday, “the panel clarified that it had not ruled that Scheindlin violated the code of conduct, only that the ‘appearance of partiality required reassignment.”
As this issue gains widespread attention – drawing in the likes of lawyers, law professors, former Mayor Rudolph Giuliani, and police unions – it remains to be seen how the Second Circuit will proceed. But one thing is certain: the institutional reputation of this previously unusually well respected court has suffered.
The Floyd case has taken unexpected turns. After Judge Scheindlin’s decision finding the NYPD stop and frisk practices unconstitutional, the City appealed. Although the City did not raise the question of Judge Scheindlin’s recusal, the Second Circuit ordered her removed from the case and her ordered remedies stayed. Then Bill De Blasio was elected mayor of New York City, pledging, among other things, to halt the stop and frisk policy and presumably to withdraw the appeal. Now Judge Scheindlin has moved to be reinstated.
Where does all of this leave the Second Circuit’s order removing Judge Scheindlin. Although the order was based, in part, on a finding that Judge Scheindlin had interfered with the Court’s case assignment procedures, the City was present when this alleged impropriety occurred and never moved to recuse her; nor did the City’s appeal raise the issue before the Second Circuit. Presumably, if the Mayor-elect withdraws the appeal, though, the order of removal will disappear. Or will it? What happens to the ordered remedies that have been stayed? What happens to Judge Scheindlin’s motion?
One thing that is clear is that this entire procedure is unprecedented. What is likely to happen? What is in limbo? The thought arises: why did the well-respected Second Circuit panel reach out to remove Judge Scheindlin knowing that Bill DeBlasio was so likely to win and so likely to withdraw the appeal? Is this confusion good for the system and its perception by the public?
Judge Asks to be Put Back on New York ‘Stop-and-Frisk’ Case, Reuters, Nov. 6, 2013.
Joseph Goldstein, Court Blocks Stop-and-Frisk Changes for New York Police, N.Y. Times, Oct. 31, 2013.
United States Court of Appeals for the Second Circuit Order of Oct. 31, 2013, staying the District Court’s January 8, 2013 Floyd “Opinion and Order,” as well as the August 12, 2013 Floyd “Liability Opinion” and “Remedies Opinion” and removing Judge Shira A. Scheindlin after concluding that the District Judge violated the Code of Conduct for United States Judges, Canon 2.